The Supreme Court of Twistification (SCOT)

by James Allison

This essay is misnomered. It’s actually about the Supreme Court of the United States, aka SCOTUS. The essay title comes from President Thomas Jefferson, who referred to the ruling in Marbury v. Madison (1803) as Chief Justice John Marshall’s “twistifications.” It is useful to know that Jefferson and Marshall were distant cousins who loathed each other—as did their two political parties, Jefferson’s ascendant Republicans (later called “Democrats”) and Marshall’s moribund Federalists (the party of Washington and John Adams).

It is also useful to know that other critics of Marbury v. Madison have called it the case in which the Court declared itself Supreme. What they mean is that Marbury v. Madison is the case in which the Court declared its incontestable, uncheckable power to nullify an act of Congress.

“Wait,” you say. “That can’t be right. That power must have been stated in black and white somewhere in the Constitution, way before 1803.” My answer to that is a law professor friend who likes to hand a student a copy of the Constitution, saying “If you can find that power in this book, I will give you $1,000.” He’s never had to pay up. And he was not the first to issue such a challenge. In 1802—the year before Marbury v. Madison—Kentucky Senator Breckenridge, on the floor of the Senate, challenged no less than a principal drafter of the Constitution, Gouverneur Morris. But the best Morris could offer in response was high-flown bloviation—because the power in question is simply not to be found in the Constitution.

So, we might call Marbury v. Madison a usurpation of political power by the Marshall Court. And a major usurpation at that. Can you think of another “democratic” nation whose high court can simply nullify an act of its legislature, with no chance of appeal? Can you imagine any court in Great Britain that would dare to simply nullify an act of Parliament, case closed?

Someone was sufficiently fond of it to have inscribed a Marshall quotation from Marbury v. Madison on the walls of the Supreme Court building in Washington, D.C.: “It is emphatically the gprovince and duty of the judicial department to say what the law is.” As stated much later by Justice Charles Evans Hughes, “We are under a Constitution, but the Constitution is what the judges say it is.” And Justices surely appreciate the independence that comes not only from long established custom, but from constitutional guarantees of an optional lifetime appointment, conditional only on “good behavior,” and of compensation—pay—that cannot be diminished (Article 3, Section 1).

Despite its bedrock place in American law, Marbury v. Madison has legions of critics. Some even call Marshall unethical, as he should have recused himself from the case. Why? Because it was Chief Justice Marshall who, while also acting as President Adams’ Secretary of State, caused the injury that inspired Marbury to ask the Court to redress that injury. Specifically, It was Marshall’s Secretarial duty to deliver several judicial commissions on Adams’ last night as president—“midnight appointments.” Marshall managed to deliver all of those commissions but four, of which Marbury’s was one. And here’s the same Chief Justice Marshall three years later, adjudicating that very case. He would not get away with that today, nor with his simultaneous service as both Chief Justice and Secretary of State.

More controversially, many critics think Marshall’s ruling got the law wrong. But what was the ruling?

First, Marshall found that Marbury had truly been injured, and that the present Secretary of State, Jefferson’s James Madison, owed Marbury his commission. But Marshall went on to say that SCOTUS could not order Madison to redress Marbury’s injury, because SCOTUS had no constitutional power to do so. SCOTUS was strictly an appellate court, with no power to make original findings of fact. There might be exceptions, but this was not one of them. Marbury’s lawyer (the excellent Charles Lee) had been misled on this score, said Marshall, by a mistaken act of Congress in 1789. The act made several reforms to our judicial system, but went too far in extending the judicial power of the Supreme Court. Unfortunately for Marbury, said Marshall, the Congress had no constitutional power to thus extend the purview of SCOTUS. It was this reading of the Constitution

that made the Supreme Court Supreme, and empowered it to nullify acts of Congress. But was Marshall’s reading correct?

Many distinguished scholars think it was not, and have hacked their way through miles of legal thickets to reach that conclusion (e.g., Amar, 1989). Many others, comparably distinguished, would disagree. And many ordinary citizens, alarmed at the seemingly unchecked power of our present day SCOTUS, may now think it time to reframe the question of Marbury v. Madison: Whether legally correct or not, has Marshall’s ruling been good for the country? That looks much like an empirical question, begging for factual answers of the kind that might come more readily from sociologists or political scientists than lawyers.

Anna Harvey is a political science professor at New York University. In the final chapter of her book, A Mere Machine: The Supreme Court, Congress, and American Democracy, the chapter title asks “What’s So Great About Independent Courts, Anyway?” The question, which may seem impudent, comes from her comparison of several democratic nations in terms of two variables: their civil rights and liberties, and the independence of their judiciary systems. To my surprise, she reported an inverse relation between those two variables. This means that the USA, with its highly independent judiciary in the form of SCOTUS, ranks relatively low in terms of civil rights and liberties.

That was not what my schooling had led me to expect. Maybe we are not so lucky after all to have such an independent judiciary, with its lifetime appointments and all the rest. Maybe we should fetter our high court with a few more checks and balances. We could limit one’s tenure on the Court to 12 years. We could allow Congress to over-rule any SCOTUS ruling by a supermajority vote, say 2/3 of both houses. Maybe such measures would get us a little closer to that perfect union.

Marshall had to be feeling pretty good in the wake of Marbury v. Madison. He had taken a weak, disrespected court and paved the way to its status as a powerhouse of American government. And he had cleverly avoided any Jeffersonian counterattack by ruling against Marbury, Marshall’s fellow Federalist, in favor of Jefferson’s Secretary of State.

But Marshall fans should note that he himself had second thoughts about Marbury v. Madison. A year later, in 1804, the Jeffersonians, riding high, impeached Samuel Chase, a corrosively partisan Federalist Justice with a habit of hectoring witnesses. By 1805 the matter had moved from the House of Representatives to the strongly Jeffersonian Senate, which was expected to convict Chase, kick him off the bench, and use his example as a decisive threat in future political conflicts. At about that time Marshall wrote a remorseful letter to a friend. He thought that it might be a good thing if Congress could override judicial decisions on constitutional matters. But that good thing remained just a thought. And in 1805 the Senate considered the implications of partisan impeachments, stepped back, and chose to acquit the overly partisan Associate Justice Chase.

So the Court remained free of both the Congressional override that Marshall had envisioned, and the threat of partisan impeachment with which the Jeffersonians had flirted. Free of such impediments, the Court gradually grew into the independent powerhouse we know today. Otherwise, our judiciary might be less independent, our civil rights and liberties more pronounced. And should the time come for judicial reform in America, we might get some ideas from those two revered antagonists, Marshall and Jefferson.

References

Adams, Henry (1986). History of the United States 1801-1809. New York: Literary Classics of the United States, Inc. Pp. 400-401.

Goldstone, Lawrence (2008). The activist: John Marshall, Marbury v. Madison, and the myth of judicial review. New York: Walker.

Grafton, John (ed., 2000). The declaration of independence and other great documents of American history 1775-1865. Mineola, NY: Dover.

Grossman, Joel B. (2003). The 200th anniversary of Marbury v. Madison: The reasons we should still care about the decision, and the lingering questions it left behind. FindLaw’s Writ, February 24, 2003.